AHMAD KHAN Versus GHULAM MUHAMMAD

This first appeal arises out of the order dated 11‑11‑1982 of the learned District Judge, Khushab, whereby he set aside the judgment and decree of the trial Court dated 14‑11‑1979 and remanded the case after framing additional issues with the direction that fresh evidence be recorded on the additional issues and evidence already recorded shall also be the evidence after remand.

2. The facts relevant for the disposal of this appeal, as per record, are that respondents Nos.l to 3/PlaintLws filed a suit for declaration that they are owners in possession of the suit land by virtue of sale from respondents Nos.4 to 10. The appellant‑defendant No.8 filed a written statement contending therein that he was a bona fide purchaser of the suit land for consideration without notice and that. the land was purchased from respondents Nos.4 to 10 from whom the plaintiffs also claimed. The trial Court framed the following issues:‑

(I) Whether the plaintiffs have got any locus standi to bring this suit.

(II) Whether the plaintiffs have got any cause of action to sue ?

(III) Whether the suit is not maintainable in its present form?

(IV) Whether the suit is bad on account of non‑joinder of necessary parties?

(V) Whether the plaintiffs are owners of the suit property on account of alleged sale by the defendants in favour of the plaintiffs?

(VI) Whether the defendants are entitled to special costs under section 35, C.P.C.? If so, to what extent?

(VII) Relief.

3. The learned trial Court after appraisal of evidence led by the parties dismissed the suit vide judgment and decree dated 14‑11‑1979. On appeal, the learned District Judge, by order dated 11‑11‑1982 set aside the impugned judgment and decree of the trial Court on the ground that the material issues arising. out of the pleadings of the parties were not framed. Accordingly, the following additional issues were framed:‑

(4‑A) What was the share of Sher Muhammad defendant No.l in the suit land? O.P. Parties.

(4‑B) Whether Sher Muhammad defendant No.l sold away his share in the suit land in favour of Ahmad Khan defendant No.8, if so, when, by what mode and for what consideration?

(4‑C) Whether defendants Nos.l to 7 sold away the suit land or part thereof in favour of Sher Muhammad son of Ghulam Muhammad defendant No.9, if so, when, by what mode and for what consideration?

(4‑D) Whether Ahmad Khan defendant No.8 is a bona fide purchaser of the suit land or part thereof for value, without notice?

(4‑E) Who amongst the parties is in possession of the suit land?

4. Learned counsel for the appellant vehemently contended that the trial Court recorded a finding that no sale was made by the defendants in favour of the plaintiffs, and therefore, the suit was dismissed. It is submitted that the plaintiffs neither claimed nor they could have claimed any additional issues framed by the learned District Judge, which was for the benefit of the appellants, and therefore, non‑framing thereof did not result in any prejudice to the plaintiffs respondents. It is next contended that in any event, the learned District Judge had no jurisdiction to set aside the decree of the trial Court without setting aside the finding against issue No.5.

5. Learned counsel for respondents Nos.l to 3 submitted that the tenor of the order of the learned District Judge shows that findings on issue No.5 were also set aside, in that, the issue in question forms part of the trial Court's judgment the whole of which has been set aside vide the impugned order.

6. I have given my anxious consideration to the submissions of the learned counsel for the parties and perused the record with their assistance.

7. I am inclined to agree with the submissions of the learned counsel for the appellants that the mere fact that material issues arising out of the pleadings of the parties were not struck by the trial Court would not ipso facto lead to the conclusion that the findings recorded on the issues already framed were wrongly recorded, It was imperative on the learned District Judge to consider after perusal of evidence on record as to whether or not issue No.5 was correctly decided by the trial Court. In the absence of any positive finding in this regard the judgment of the trial Court was not liable to be se aside.

8. In view of the above, I direct that in pursuance of the impugned order of the learned District Judge, the trial Court shall ‑record the evidence of the parties on the additional issues without giving any decision thereon and thereafter remit the case to the learned District Judge for decision of appeal as a whole. The result is that the appeal filed by respondents Nos.l to 3 before the learned District Judge, Khushab, shall be treated as pending and the same shall be disposed of in accordance with law after the evidence recorded by the trial Court on additional issues is received by him. The parties are directed to produce their respective evidence, on the additional issues before the trial Court on 28th of June, 1983, at their responsibility. The order of the learned District judge is modified to the extent indicated above with no order as to costs.

H.B.T./A‑328/L Case remanded.